What is Judicial Activism?

Introduction

Judicial activism is the term used to describe the actions of judges who go beyond their constitutionally prescribed duties of applying law to the facts of individual cases, and "legislate" from the bench. These judges create new constitutional rights, amend existing ones, or create or amend existing legislation to fit their own notions of societal needs.

For example, when a court "finds" a "right of privacy" hidden in the "penumbras" and "emanations" of the Constitution,1 and later expands this "right of privacy" into the right to abortion;2 that's judicial activism. Here are some other examples:

• When a court rules that the First Amendment ("Congress shall make no law ... ") suddenly means that "the states shall make no law" and creates a new constitutional "wall of separation" between church and state;3
• When a court rules that "evolving constitutional standards" mandates a right to same-sex marriage, contravening 200 years of state law and centuries of tradition.4

Q. What is a judge's proper role?

A. The proper role of a judge is to be an umpire. A baseball umpire calls balls and strikes, but doesn't change the rules of baseball in the process. Applying the analogy, a judge (umpire) applies the law (rules of baseball) to the facts of a particular case (a pitch, a runner tagged out, a fly ball caught or missed) to arrive at a judgment (strikes, outs, foul balls, etc.).

Example: A jury finds that Joe Smith robbed a bank on a certain date. The judge then applies the rules, i.e., a criminal statute passed by the legislature, to arrive at a judgment, i.e., jail time. Appellate court judges review cases to determine that the trial judge applied the law correctly. Sometimes courts are asked to examine the law itself to ensure that it does not run afoul of the Constitution in any way.

Q. That sounds simple. So how does judicial activism enter the picture?

A. Judicial activism occurs when a judge wants to change the rules of the game, a constitutionally granted responsibility that belongs only to the legislature. For example, prior to 1973, abortion laws were left up to the states to decide for themselves, as an exercise of each state's "police power."5 In the 1973 Roe v. Wade decision, however, the Supreme Court, building upon the judicially created "right of privacy" announced in its Griswold decision6 several years earlier, created a new right to abortion on demand applicable to all 50 states. What had been the sole prerogative of the states' legislatures was now pre-empted by a judicially created federal mandate, unappealable and unchallengeable except for a Constitutional amendment.

Courts (especially the Supreme Court) have engaged in changing the rules (i.e., making law from the bench) at various times in our nation's history, but in the last 50 years the pace of judicial activism has increased alarmingly.

Q. Surely the Framers never even thought about abortion, same-sex marriage or Ten Commandments displays when they drafted the Constitution. Wouldn't the Framers want us to adapt to our constantly changing society, and not be forever bound by an outdated 200-year-old document?

A. Yes, the Framers anticipated and provided for change. Very simply, the first way we adapt to changing times is obvious: we make new laws. We can also revise or revoke outdated laws to meet today's exigencies. We elect representatives who are accountable to us, and if they don't perform the way we ask them to, we remove them via the election process. Although judges should stay out of purely legislative issues, they don't. Even the Supreme Court can't resist revising statutes when it sees an opportunity.7

The second method the Framers provided to us for adapting to current societal needs involves the Constitution itself.

Q. So what is the method the Framers envisioned for changing and adapting the Constitution to the times?

A. It's called a constitutional amendment. The process is this: Congress passes a proposed amendment by a two-thirds majority, and then the amendment must be approved by three-fourths of the states in order to become law. Since the Constitution and Bill of Rights (the first 10 Amendments) were ratified by the states and became the law of the land, the Constitution has been amended 17 times. The last amendment, the 27th Amendment, was ratified by the states and became law in 1992.

Q. What's wrong with letting judges play that role as well?

A. The problem is that "we the people" are left out of the equation altogether. Federal judges, for example, are appointed for life and can be removed only by impeachment proceedings in Congress. They are hardly "accountable" for their actions in the same manner as our elected representatives, who must stand for re-election on a regular basis. Should one, or three, or even five unelected and unaccountable judges decide for all of America that the words "under God" should not be in the Pledge of Allegiance?

Another reason judges should not be allowed to change the Constitution is that they can change a law today based on a fleeting feeling. A constitutional amendment, on the other hand, is a slower process that ensures that changes to the Constitution are not done without deliberation, public debate and supermajority (i.e., two-thirds) approval.

Q. But I've heard that liberal, activist courts are the defenders of minority rights. Is that true?

A. Absolutely false! Let's look at the issues of slavery and segregation.

• In 1820, Congress passed the Missouri Compromise and outlawed slavery in the new territories created in that legislation. The Supreme Court's 1857 Dred Scott decision overturned the anti-slavery portions of the Missouri Compromise and affirmed that slaves were indeed "property."
• In 1865, Congress and the states (not the courts) passed the 13th Amendment, which abolished slavery. In 1875, Congress banned all racial segregation. Yet the Supreme Court in 1883 held that legislation to be unconstitutional.8 Then, in 1896, the Supreme Court held that "separate but equal" facilities were valid under the 14th Amendment,9 another amendment passed in the wake of the Civil War in response to slavery. It took the Supreme Court almost 60 years to reverse itself on that issue, declaring that "separate but equal" was "inherently unequal." That case, Brown v. Board of Education,10 is almost always used (incorrectly, as history teaches us) to support the notion that the Supreme Court is the protector of civil rights.